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A 60-day period in which workers’ compensation claim payers can challenge the compensability of an injury does not apply to disputes over the extent of an injury, the Texas Supreme Court has ruled.

The ruling Friday, August 28, in State Office of Risk Management v. Mary Lawton overturned an appellate court ruling in the case in which Lawton injured her left knee in 2005 while working for the Texas Department of Criminal Justice.

A dispute arose over whether the state office should pay for surgery after a “peer-review” doctor reported that a degenerative condition caused the need for surgery and not the workplace injury.

The state office contested the claim, but a workers’ comp hearing officer ruled the agency waived its right to contest it by waiting too long to dispute it.

The officer ruled that the state office could have discovered the extent of Lawton’s injury within a 60-day period established to streamline claims processing. A state appellate court agreed.

But the Texas Supreme Court ruled that the 60-day rule applies to compensability and not to disputes over the extent of an injury.

The case was remanded for proceedings consistent with the court’s opinion.

Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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A gay man is not necessarily barred from filing a sex discrimination claim under Title VII of the Civil Rights Act of 1964, even if there is no federal law banning discrimination based on sexual orientation per se, a federal appeals court has ruled.

According to the decision Friday, August 28, by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Brian D. Prowel v. Wise Business Forms Inc., Prowel was told when he was terminated from his job at Butler, Pennsylvania-based Wise after 13 years that it was because of a lack of work. He had operated a nale encoder, which is a machine that encodes numbers and organizes business forms.

Prowel, who is homosexual, contended he was the victim of sex discrimination and retaliation.

Unlike the “genuine stereotypical male” at his plant, he said he “had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat” and “filed his nails instead of ripping them off with a utility knife,” among other characteristics. He said he was called “princess,” “rosebud” and “faggot” by his co-workers, among other incidents. He said he was terminated several months after his employer learned he had asked co-workers to testify on his behalf in a lawsuit against the company.

In its decision that overturned a lower court ruling dismissing the case, the unanimous three-judge panel said Congress has rejected legislation that would have extended Title VII to cover sexual orientation.

“This does not mean, however, that a homosexual individual is barred from bringing a sex discrimination claim under Title VII, which plainly prohibits discrimination ‘because of sex,’ ” the court said.

“The line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw,” and the record here “is ambiguous on this dispositive question. Accordingly, Prowel’s gender stereotyping claim must be submitted to a jury,” the court ruled.

When the facts “are considered in the light most favorable to Prowel, they constitute sufficient evidence of gender stereotyping harassment—namely, Prowel was harassed because he did not conform to Wise’s vision of how a man should look, speak and act—rather than harassment based solely on his sexual orientation,” said the court, which remanded the case for further proceedings.

The court did, however, uphold the lower court’s dismissal of Prowel’s religious discrimination claim. It said Prowel—who said he had received anonymous prayer notes, among other incidents—failed to show he had been intentionally harassed because of religion.

Prowel’s attorney, Katie R. Eyer, an associate with Salmanson Goldshaw in Philadelphia, said the decision will be “highly significant and influential.” Wise’s attorney, Kurt A. Miller, a partner with Thorp Reed & Armstrong in Pittsburgh, had no comment.

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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Dear Ticklish Situation:

 

Thank you for your question. You’ve got a difficult situation, one that negatively affects your business, and thus deserves to be addressed.

I would first caution you to be sure your facts are correct—that Mr. Big is indeed turning off customers (more than one), that it is in fact damaging business outcomes, and that his customer visits aren’t prompted by a sales force that is failing to do its job very well. One good place to start would be to accompany Mr. Big on a few sales calls. (While you’re at it, stop “warning” customers, as doing so is disrespectful to your owner, and a clear sign to the customer that your organization doesn’t have its act together.)

Second is the matter of who best to engage the boss in receiving some coaching.

Preferably, it should come from a member of the senior leadership team (one of his direct reports)—a person who is unquestionably performing his or her own job well, is skilled at performance coaching, and has the boss’s respect. Assuming that your sales manager/executive meets these requirements, he might be the best person for the job, as he is the one most affected by Mr. Big’s unintended wake.

Third, whoever gets this assignment will want to handle it skillfully, for all the obvious reasons. Some suggestions:

• Pick a time coincident with a recent episode with an offended customer, and at a time when the boss is in a mood to listen to some feedback. Arrange for a private conversation.

• As a sign of support, start the conversation by taking some responsibility for the fact that this conversation should have occurred before now. Also, ask your boss if he’s willing to listen to some unsolicited feedback about something that is potentially deleterious to your business. (“Man up” here, and don’t hide behind others. He’ll appreciate it.)

• Take a deep breath, remember that this is a conversation and not an inquisition, and then frame the topic. I would ask for his recollection of a recent sales call that you know was off-putting to the customer. Hear him out, and listen carefully to his perspective. I would then share with him the fact that, his tremendous product knowledge notwithstanding, you have reason to believe that this customer might have been put off by his approach. Be prepared to discuss the call in detail and in particular his assessment of the customer’s reaction. Some resistance can be expected here, and will need to be dealt with. One way is to remind him that the only reason you’re bringing this up is for the good of the business, and in an effort to help him accomplish his objectives.

• As a means of helping him see the impact of this situation, point out that it’s likely this situation is costing him money. As much as he loves making independent sales calls, at some level doing so could be hampering the development of his sales force. It might be beneficial to pose this as a question: “If you were being paid to do a job, would it bother you if your boss continually felt the need to do your job for you?”

• Once it’s evident that the topic is clear and both of you have a full appreciation for it, you’ll want to at least offer to work with him to find a course of action that will serve the business well and be satisfactory to him at the same time. One possibility might involve him continuing to make sales calls but in a joint capacity with sales reps where his role might be better leveraged by doing more observing, teaching and supporting than selling.

• When the conversation is over, leave it in the room. Whether he agrees with you or not, you have at least responsibly raised his awareness of something that is keeping the organization from performing optimally. If your boss is as smart as we think he is, he will appreciate someone who cares enough—and has the courage—to discuss the matter candidly with him.

SOURCE: Richard Hadden and Bill Catlette, co-authors, Contented Cows MOOve Faster, August 13, 2009

LEARN MORE: Please read HR Feedback for Your Boss for additional insight on handling this issue.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Dear Workforce Newsletter

California Insurance Commissioner Steve Poizner on Thursday, August 27, said he will file a lawsuit to have the sale of $1 billion in State Compensation Insurance Fund assets declared unconstitutional.

After a recommendation by California Gov. Arnold Schwarzenegger, a state budget revision in July authorized selling $1 billion in SCIF’s assets to bolster the state’s ailing general fund.

But Poizner said the budget revision violates a provision of California’s constitution that requires “appropriate legislation” to establish a workers’ comp system.

“The pilfering of funds used to pay the claims of injured workers to instead help fill the state budget gap is both unconscionable and unconstitutional,” the commissioner said in a statement. “This $1 billion sale of SCIF assets could not only endanger the solvency of SCIF, but is a direct affront to the state’s jobs and business climate.”

The lawsuit, naming California Department of Finance Director Michael Genest and State Treasurer Bill Lockyer as defendants, is expected to be filed in Sacramento County Superior Court in the coming days, the commissioner said.

Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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Two key lawmakers said that a provision in the House health care reform bill that would allow a public health plan to negotiate payments with providers could be dropped from a bill passed by a crucial House panel.

Rep. Pete Stark, D-California, chairman of the Ways and Means Health Subcommittee and a principal author of the America’s Affordable Health Choices Act, said he wants payments based on Medicare’s rate schedule—a measure that puts him at odds with the provider community as well as the more conservative wing of his party.

“I think most of us agree that we pay too much to providers now,” Stark told reporters on a conference call.

At issue is a provision included in a House bill that allows the Health and Human Services secretary to negotiate pay rates with hospitals and doctors. The measure was added after a bloc of fiscally conservative Democrats, known as Blue Dogs, threatened to stall the bill.

Providers have long contended that Medicare payments don’t cover the cost of care. Neither Stark nor Rep. Xavier Becerra, D-California, who helped shape negotiations between three different committees, suggested the provision would be a deal breaker, but each warned that it could drive up costs rather than lower them.

“To have negotiated rates would cost American taxpayers money,” Becerra said, citing a report by congressional budgeters. “If one of your principles is to really drive costs down, well, there’s tens of billions of dollars on the table right now in how you structure the public option.”

Stark, who is critical of the Blue Dog wing of the party, said lawmakers will continue to negotiate when they return to Washington in September.

Filed by Matthew DoBias of Modern Healthcare, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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Western Union Financial Services Inc. will make a $4.1 million cash contribution to its defined-benefit plans, under an agreement with the Pension Benefit Guaranty Corp., according to a news release from the pension insurer.

Under the agreement, Englewood, Colorado-based Western Union will make the contribution—in addition to any other required payments—to its plans by September 11, according to the release.

The PBGC said in the release that the agreement was made because ERISA requires the agency to seek additional protection when more than 20 percent of a company’s employees covered by a pension plan lose their jobs at a company facility. Western Union shut down a call center in Bridgeton, Missouri, on August 7, 2008, resulting in 153, or 44 percent, of the call center’s 351 employees losing their jobs.

“Under the agreement, Western Union is putting more money into the plan for the benefit of participants and to reduce risk to the PBGC insurance program by enhancing the plan’s financial health,” the news release said.

Steve Gawlik, a Western Union spokesman, said the company did not release the total assets in its two defined benefit plans, which he said are frozen.

According to a company 10-Q filing with the Securities and Exchange Commission, Western Union’s two plans had unfunded pension obligations of $107.1 million as of December 31.

According to the 2009 Money Market Directory, one of Western Union’s defined benefit plans had assets of $357 million as of December 2007, while the other had assets of $28 million as of September 2007.

Along with the $4.1 million contribution, the SEC filing said the company estimated it would be required to contribute $25 million to the plans in 2010.

Filed by Doug Halonen of Pensions & Investments, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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Federal health care reform legislation is ailing, but experts and observers say it’s far from dead.

When the health care reform drive began early this year, Obama officials and Democratic congressional leaders brimmed with optimism.

They predicted fast congressional action, with the House and Senate approving bills by the August recess, differences in those two bills being ironed out during the break and a final measure going to the president by mid-September or early October.

Although President Barack Obama last week predicted such legislation will pass Congress by year’s end, the reform drive still seems to be in trouble, Washington observers say.

The House has yet to take up a bill already approved by three House committees.

In the Senate, the pivotal Finance Committee has struggled for months to hammer out a package that will attract support from at least a few of the committee’s Republican members, with no sign of an imminent agreement. Until that committee acts, the full Senate can’t take up a bill.

Meanwhile, public support for reform legislation has slipped. A poll earlier this month by the Kaiser Family Foundation found that just 45 percent of respondents believe the U.S. would be better off if Congress passes reform legislation, down from 51 percent a month earlier.

At the same time, some congressional backers of reform legislation were shouted down during town hall meetings during the past few weeks.

‘Something will pass’
Despite the delays in congressional action and rising public concerns, Washington observers and others say the reform effort is far from dead.

“In the end, a version of reform legislation will pass. There is too big a risk to both sides” if a bill isn’t approved, said Frank McArdle, a consultant in the Washington office of Hewitt Associates Inc.

“The Democrats will be perceived as being unable to deliver, while Republicans will be portrayed as obstructionist,” McArdle said.

“At the end of the day, something will pass,” said Chantel Sheaks, a consultant with Buck Consultants in Washington.

“Reform is very much alive, but we are far from knowing the final outcome,” said Kathryn Wilber, senior counsel-health reform with the American Benefits Council in Washington.

But a final bill is likely to be significantly different and slimmed down from the one approved by the House panels and the Senate Health, Education, Labor and Pensions Committee.

“We are going to see a scaling back,” said Steve Wojcik, vice president of public policy with the National Business Group on Health in Washington.

The most likely provision to be scaled back is setting up an optional public health care plan.

Establishing such a plan—dubbed by former Vermont Gov. Howard Dean as Medicare for the nonelderly—has stoked fears that it would drive out private plans and ultimately lead to a single-payer system. Some say it is certain that the provision will be revamped, if not eliminated.

“The idea of a public plan option has been pretty much ended,” Wojcik said.

Others see nonprofit health care cooperatives replacing a public health plan in the reform legislation.

“If I were a betting man, I’d see co-ops as a compromise” proposal that could win congressional passage, said Michael Thompson, a principal with PricewaterhouseCoopers in New York.

Buck Consultants’ Sheaks said one scenario that could develop is Congress passing insurance underwriting reforms and possibly an individual coverage mandate this year, leaving tougher issues for next year or later.

Such reforms, which have no serious opposition, could include a ban on excluding pre-existing medical conditions in the personal lines market. Congress in 1996 curbed the use of such exclusions, but only in the group market, as part of a broader law.

Provisions may fail
Other reforms legislators might embrace include guaranteed issue and renewals.

At the same time, provisions now in the bills that are not directly related to health care reform might be discarded as legislators move to slim the measures and defuse business opposition. Some provisions include making it more difficult for employers with retiree health care to reduce benefits, expanding COBRA health care continuation coverage and giving states the ability to create single-payer systems.

“In order for a bill to be successful, it will have to be one that is more moderate and be something that employers will feel comfortable with,” McArdle said.

Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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A House committee with jurisdiction over health care reform legislation has sent letters to more than 50 major commercial health insurers asking them to identify by name each executive who earned at least $500,000 a year in any year from 2003 to 2008.

The letter, signed by Rep. Henry Waxman, D-California, chairman of the House Energy and Commerce Committee, and several other Democratic panel members, asks for salary information for those individuals, as well as bonuses and the fair value of stock and option awards, among other things.

The letter also requests premium payments, claims payments, sales expenses, administrative expenses and profits for 2005 to 2008.

The letter says the insurers should break down the information by such categories as self-funded employer coverage, insured employer coverage, individual coverage and government segments, including Medicare and Medicaid.

In addition, the letter asks the insurers to detail the money they have spent on conferences held outside their facilities since 2007.

The letter says the information is needed as part of the committee’s examination of “compensation and other business practices in the health insurance industry.”

The letter requests the information by September 14, though the committee has no legal right to force the disclosure of the information.

Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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The Equal Employment Opportunity Commission can proceed in a case it filed on behalf of two women who claim they were terminated after reduction-in-force assessments at the Boeing Co. because of sex discrimination, says a federal appeals court in a ruling that overturns a lower court’s opinion.

The 9th U.S. Circuit Court of Appeals also held in its decision Tuesday, August 18, in Equal Employment Opportunity Commission v. The Boeing Co. that one of the plaintiffs could proceed with her retaliation claim.

According to the decision, plaintiff Antonia Castron worked in the electrical engineering department at Chicago-based Boeing from 1997 until 2003. Her supervisor “frequently made negative comments about women,” but refused her request to transfer to a particular work group, the opinion says.

Instead, he eventually transferred her to another group that “required substantially different skills” than the ones used at her previous post. Furthermore, the supervisor at her new group referred to her as a “little girl,” according to the opinion.

Two months after her transfer, she was given low scores in a reduction-in-force evaluation and terminated.

Based on the supervisor’s comments, “a jury might reasonably infer that [his] decision to transfer Castron, rather than a male co-worker about whom she complained, to a new position where her job was less secure may have resulted from improper motivations, including discriminatory intent, retaliatory intent or both,” the decision says. The supervisor may have “deliberately set Castron up to fail,” it said.

Similarly, after Boeing substantiated plaintiff Renee Wrede’s complaint of sexual harassment by her direct supervisor, she was transferred to another group. Although several men subsequently received lower evaluations, she was the only one to be terminated in a reduction in force.

A jury also could reasonably conclude in Wrede’s case that her discharge “resulted from discrimination on account of sex,” says the opinion, which remands the case for further proceedings.

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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